Professional Documents
Culture Documents
PUBLISH
JUN 23 2004
PATRICK FISHER
Clerk
UTAH ENVIRONMENTAL
CONGRESS,
v.
Plaintiff - Appellant,
No. 03-4080
Defendants - Appellees.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:01-CV-316-PGC)
Ray Vaughan (Adelaide Maudsley, LeBoeuf, Lamb, Greene & McRae, LLP with
him on the briefs), WildLaw, Montgomery, Alabama, for the Plaintiff-Appellant.
Mark R. Haag (Elise Foster, United States Department of Agriculture; Thomas L.
Sansonetti, Assistant Attorney General; David C. Shilton and Myesha K. Braden,
United States Department of Justice, Environment and Natural Resources
Division, with him on the brief), United States Department of Justice,
Environment and Natural Resources Division, Washington, D.C., for the
Defendant-Appellee.
Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.
In 2000, the regulations at issue in this case were changed. See 65 Fed.
Reg. 67,514 (Nov. 9, 2000). The regulations in effect at the time of the disputed
Forest Service decisions in this case were the regulations first adopted in 1979,
and amended in 1982 and 1983 (known as the 1982 rule). See 67 Fed. Reg.
72,770 (Dec. 6, 2002). As a result, we will apply the 1982 rule and all references
to the C.F.R. are to the 1999 version, the last published edition before the 2000
revisions.
1
-3-
-5-
-6-
Babbitt, 129 F.3d 1377, 1382 (10th Cir. 1997) (citations omitted); Federal Power
Commn v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 331 (1976)
(recognizing that if an agencys decision is not supported by the administrative
record made, it must be vacated and the matter returned to the agency for further
consideration). Because we are obligated to undertake an independent review of
the agencys action in this appeal, we are not bound by the District Courts
recitation of the facts below. Olenhouse v. Commodity Credit Corp., 42 F.3d
1560, 1569 n.16 (10th Cir. 1994) (citation omitted).
When reviewing an agencys interpretation of its own regulations, we defer
to the agencys view, unless it is unreasonable, plainly erroneous, or inconsistent
with the regulations plain meaning. Bar MK Ranches v. Yuetter, 994 F.2d 735,
738 (10th Cir. 1993) (citation omitted). In the context of technical or scientific
matters particularly, judicial deference to agency decisions is appropriate,
Wyoming v. United States, 279 F.3d 1214, 1240 (10th Cir. 2002), and choices of
suitable scientific methodology are entrusted to the agency, Custer County Action
Assn. v. Garvey, 256 F.3d 1024, 1036 (10th Cir. 2001).
In the instant case, UEC argues that the district court erred when it found
that [f]or each of the five MIS at issue [in this case], the Forest Service has
collected appropriate quantitative population data or has a valid reason for not
collecting such data. Utah Environmental Congress v. Bosworth, et al., No.
2:01-CV-00316PGC, slip op. at 18 (D. Utah Mar. 27, 2003) (Dist. Ct. Order).
-7-
On appeal UEC maintains that the Forest Service did not (1) collect appropriate
quantitative data and (2) improperly relied on habitat trends rather than actual
species population trends. As a result, UEC argues, the Forest Services decision
to authorize the Monroe Project was arbitrary and capricious.
1
The Fishlake Management Plan subdivided the Fishlake National Forest
into nineteen separate Management Areas, each with its own management
practices. The Monroe Project covers six different Management Areas within the
Fishlake National Forest; however, ninety-two percent of the Monroe Project area
is within Management Area 4B. Area 4B is designated Habitat for Management
Indicator Species, which indicates that priority should be given to managing the
lands in accordance with the habitat needs of MIS. (1 AR Doc. 460 at S-9.) To
this end, the Forest Service is required to estimate the effects of each
[management] alternative on fish and wildlife species that are selected because
their population changes are believed to indicate the effects of management
activities. 36 C.F.R. 219.19(a)(1). The species thus selected as MIS should
represent endangered or threatened plants and animals; species with special
habitat requirements which may be affected significantly by planned activities;
commonly hunted, trapped, or fished species; special interest species; and plant or
animal species selected because their population changes are believed to indicate
the effects of management activities on other species. Id. Because of their
-8-
-9-
action. 185 F.3d at 1168. This application is in accord with the analysis of other
circuits. See, e.g., Sierra Club v. Martin, 168 F.3d 1, 6 (11th Cir. 1999)
(recognizing that although 219.19 applies to the formulation of Forest Plans
rather than to specific projects proposed, the duties of the Forest Service
continue throughout the Plans existence); Inland Empire, 88 F.3d at 760 n.6
(9th Cir. 1996) (reasoning that [b]ecause any [area] contained within the
boundaries of a forest having a plan would be an area . . . covered by a . . . forest
plan, it would [] also be a planning area governed by Regulation 219.19)
(quoting 36 C.F.R. 219.3). Several district court opinions in this circuit have
also applied 219.19 to project-level decisions, see Utah Environmental Congress
v. Zieroth, 190 F. Supp. 2d 1265, 1270 n.1 (D. Utah 2002); Forest Guardians, 180
F. Supp. 2d at 12791280. Moreover, our analysis comports with the NFMA,
which requires that resource management activities be consistent with the Forest
Plan. 16 U.S.C. 1604(i). Similarly, Forest Service regulations direct that
activities affecting [forest] lands . . . shall be based on the plan, 36 C.F.R.
219.10, and at a minimum, all management practices should [p]rovide that
habitat for species chosen under 219.19 is maintained and improved to the
degree consistent with multiple-use objectives established in the plan, 36 C.F.R.
219.27. Because 219.27 contemplates the application of 219.19 to
management activities, and as the Forest Service implements Forest Management
Plan activities by approving specific projects, we are convinced that read as a
- 11 -
was required to collect actual population data on the lynx before moving forward
with the expansion; the Forest Service maintained that habitat data could be
substituted in cases where actual population data was unavailable and where
actual data would not enhance the Forest Services analysis because the proposed
action would not result in species loss. Id. at 1168. We were careful to note in
Dombeck that the population inventory requirements of 219.19 that apply to
Management Indicator Species are irrelevant to the issue before us because the
Canada lynx was not an MIS. Id. at 1170. Therefore, our narrow holding was
that the regulatory language does not require the Forest Service, under the
circumstances of this case, to collect actual lynx population data. Id.
Moreover, our reasoning in Dombeck rested on the observation that the
regulatory language clearly presupposes the ascertainable presence of a species
population within a given planning area. Id. at 1169. In the case of the Vail
expansion project, despite good faith efforts to confirm the presence of lynx, no
one has seen an actual lynx in the project area in over twenty-five years . . . .
Id. Because we concluded that Congress could not have intended to require the
Forest Service to collect quantitative population data where no population
exists, id. at 1170, the Forest Services use of habitat analysis information to
examine the effects of the Vail expansion with an eye toward preserving the
potential for a viable lynx population in the area in the future was all that was
required under the regulations. Id. Additionally, we noted our agreement with
- 13 -
the Ninth Circuit that the Forest Service should use actual population data when
such data is available. Id. at 1170 n.9 (citing Inland Empire, 88 F.3d at 761 n.8).
We are therefore unconvinced that Dombeck supports the Forest Services
interpretation that habitat information alone is sufficient to fulfill its obligations
under 219.
In keeping with the reasoning of the Eleventh Circuit and the district courts
of this circuit, we conclude that 219.19 requires the Forest Service to use actual,
quantitative population data to effectuate its MIS monitoring obligations. Section
219.19 mandates that as part of forest planning, [f]ish and wildlife habitat shall
be managed to maintain viable populations of existing native and desired nonnative vertebrate species. Further, forest management [p]lanning alternatives
shall be stated and evaluated in terms of both amount and quality of habitat and of
animal population trends of the management indicator species, 219.19(a)(2);
similarly, [p]opulation trends of the management indicator species will be
monitored and relationships to habitat changes determined, 219.19(a)(6).
Plainly the regulations require that the Forest Service monitor population trends
of the MIS in order to evaluate the effects of forest management activities on the
MIS and the viability of desired fish and wildlife populations in the forest more
generally.
Our reading of the requirements of 219.19 is strengthened by 219.26,
which provides that to ensure diversity of plant and animals in forest planning,
- 14 -
- 15 -
- 16 -
specifically states that the MIS selected for the plan were chosen, in part, due to
[r]elative ease of monitoring. (2 AR Doc. 544a at II-27.) Moreover, because
MIS, if they are to serve their purpose as a class representative in the Fishlake
Forest Plan, should generally not be difficult-to-count species, and because the
Forest Service did not argue to us that the sage grouse and sage nesters are
reclusive and hard to track, we decline to follow the reasoning in Inland Empire,
88 F.3d 754, 763 n.12 (finding that the MIS at issue was a reclusive species and
there was no technically reliable and cost-effective method of counting
individual members of the species).
Of course, not all MIS designated in the Fishlake Forest Plan are
necessarily present within the Monroe Project area, and we do not require the
Forest Service to attempt to track species where no population exists,
Dombeck, 185 F.3d at 1170. We do, however, conclude that good faith efforts
to confirm, Dombeck, 185 F.3d at 1169, the absence or presence of an MIS
species by the Forest Service is necessary in order to fulfill its MIS monitoring
obligations under 219.19. Here, despite unconfirmed sightings of the sage
grouse within the Monroe Mountain project area, the record reflects no attempt by
the Forest Service to confirm the presence of this MIS. Accordingly, we find that
the Forest Service did not comply with 219.19 with respect to the sage grouse
and sage nester guild MIS within the Monroe Project area.
- 22 -
5
Finally, we address the Forest Services monitoring of the cavity nesters.
The district court stated that there have been no known sightings of Cavity
Nesters . . . on Monroe Mountain. (Dist. Ct. Op. at 19.) The Forest Service,
however, does not assert on appeal that there have been no sightings of cavity
nesters, nor does it direct this court to record reference where we might locate
evidence to support the district courts conclusion. Rather, to support its
monitoring of the cavity nesters, the Forest Service relies upon the
aforementioned Burnt Flat Analysis from 1994 and additional studies of the threetoed woodpecker, a member of the Cavity Nester guild, as evidence of its
monitoring of this MIS guild. Reviewing the three-toed woodpecker information
in the record, we arrive at a brief discussion in the Biological Evaluation on
Sensitive Species of the effects of the Monroe Project on the woodpecker that
observes prey abundance, soil, water, and air quality changes resulting from the
project could indirectly effect the three-toed woodpecker. For example, the
Biological Evaluation speculates that tree harvesting could result in woodpecker
relocation, possibly causing a compression of the woodpeckers in one area. Also
included is a map indicating the Cavity, Feed & Nest Tree Locations of the
three-toed woodpecker in the Fishlake National Forest as of the summer of 2000.
(5 AR at 2234.) The Biological Evaluation concludes that individual
woodpeckers and woodpecker territory may be affected by the Monroe Project,
- 23 -
however those effects will not lead to a loss of population viability for the threetoed woodpecker, and that the Monroe Project should result in a increased
availability of snag trees, which is cavity nester habitat.
Our review of the record reveals no quantitative data for either the cavity
nester guild or the three-toed woodpecker species; the woodpecker map is
apparently based on actual data collected, and the FEIS observes that nest
building activity for the three-toed woodpecker in the Monroe Project area has
been observed. (2 AR Doc. 485 at III-68.) While the Forest Service contends
that woodpecker survey work . . . [and] a graduate study on three-toed
woodpecker distribution have been completed, the record citation is to a letter
asserting this information has been collected, not to actual data. (5 AR at 2205.)
It appears that hard quantitative dataat least sufficient to create the woodpecker
mapwas collected on the three-toed woodpecker; nevertheless, quantitative data
sufficient to determine population trends of the three-toed woodpecker was absent
from the record before us. Accordingly, we determine that the Forest Services
monitoring of the cavity nester guild, through its monitoring and evaluation of the
three-toed woodpecker, was insufficient to comply with the requirements of
219.19.
III
We now turn to UECs claim that the Forest Service illegally revalidated
roadless areas during the development of the Monroe Project. In 1979, the
- 24 -
- 25 -
Guide itself or elsewhere that the Desk Guide restricts the Forest Services
discretion in managing IRAs. In addition, UEC relies on the Forest Service
Handbook, 1909.12, Chapter 7 to support its position. However, that chapter
merely describes the process for identifying and evaluating potential wilderness
in the National Forest System, id. at chap. 7, and sets forth criteria for
determining whether [r]oadless areas qualify for placement on the inventory of
potential wilderness, id. at 7.11. Nothing in 1909.12 restricts the Forest
Services discretion in managing IRAs.
Finally, in its reply brief, UEC directs our attention to the so-called
Roadless Rule, 36 C.F.R. 294.10-14 (2003). Section 294.12 prohibits, with
certain exceptions, road construction in certain inventoried roadless areas.
Section 294.13 prohibits, with certain exceptions, timber cutting or removal in
inventoried roadless areas. We need not decide whether the Monroe Project runs
afoul of these new regulations, or if they are even valid, because they became
effective in January 2001 and do not apply retroactively. See 36 C.F.R.
294.14(c) (stating new rules do not revoke, suspend, or modify any project or
activity decision made prior to January 12, 2001). If anything, the fact that these
rules were propounded suggests that the Forest Service previously was not
restricted in its management of roadless areas. See 36 C.F.R. 294.10 (stating
purpose of rules is to provide, within the context of multiple-use management,
lasting protection for inventoried roadless areas within the National Forest
- 27 -
System). In sum, UEC has failed to identify any applicable limitation on the
Forest Services discretion to implement the proposed Monroe Project within the
pre-revalidation IRAs, and thus we cannot conclude that the Forest Services
authorization of the Monroe Project was dependent upon the revalidation.
Accordingly, we reject this claim of error.
IV
Because we conclude that the Forest Service has not complied with its
duties under Forest Service regulations to monitor several of the relevant
management indicator species, we conclude that the Forest Services
authorization of the Monroe Project was arbitrary and capricious. We REVERSE
the district courts order affirming the Forest Service Record of Decision
authorizing the Monroe Project and REMAND for further proceedings in
compliance with this ruling.
- 28 -
-2-